Fleet Street phone-hacking scandal: a legal perspective

Tuesday, 08 March 2011 11:48
Schillings

In the wake of the News of the World (NoW) phone-hacking controversy, this article analyses the law on journalistic newsgathering, and the prevalence of illegal activities more widely on Fleet Street, the applicable criminal and civil law, and the remedies available to the wide range of public and non-public figures who suspect they may have been targeted.

In 2010, in the witness stand at Tommy Sheridan’s perjury trial, Sheridan asked Andy Coulson about a House of Commons committee report, which stated that NoW ‘turned a blind eye’ and ‘at worst actively condoned’ illegal phone-hacking in the newsroom. The former editor replied:

‘I don’t accept there was a culture of phone hacking at the NoW. There was a very unfortunate, to put it mildly, case involving Clive Goodman. No one was more sorry about it than me – that’s why I resigned.’

However, what has been emerging in the drip-feed of disclosure from civil litigation and investigations by the Information Commissioner’s Office (ICO) and the Metropolitan Police (the Met), is just how prevalent the practice appears to have been, not just at NoW but across most of the UK’s newspapers.1

Targets were not only celebrities and politicians, but also those caught up in the news only incidentally: anyone who might be exchanging newsworthy information by phone was ripe for targeting. As the business pages have migrated to the front pages, in the ‘post’-financial crisis, post-Lehman, post-bonus scandal world, corporations, their directors and their employees are equally likely to find themselves under the hawkish scrutiny of the British press’s hackers and blaggers.

The reports from the ICO’s 2003 investigation Operation Motorman revealed a ‘widespread and organised undercover market’ for confidential personal information. Over the three years it covered, the ICO found that 305 different journalists had instructed one private investigator Steve Whittamore to obtain around 13,343 different items of information. (Around 43 per journalist.) On the ICO’s cautious reckoning, around 11,345 of these were classified as being certainly or very probably in breach of data protection laws.

It was not, as you might expect, just the red tops buying. Whittamore was instructed to carry out searches for the Evening Standard, the Observer, the Sunday Times and the Times, with the highest number of requests coming from the Daily Mail.

According to the ICO’s reports, phone-hacking, along with the other ‘dark arts’ – phone-tapping (listening into private calls), ‘blagging’ (conning organisations into disclosing personal information), mobile phone conversions (converting mobile phone numbers into addresses), occupancy searches (converting addresses into resident information), illegal searches of police and Driver and Vehicle Licensing Agency records – was not just the wheeze of a few red-top gossip columnists, but the majority of Fleet Street systematically and routinely listening in to a whole range of public and non-public figures.2

Phone-Hacking and the Law

Hacking into messages on mobile phones is covered by the Regulation of Investigatory Powers Act (RIPA) 2000. Section 1 of RIPA 2000 makes it an offence for a person intentionally and without lawful authority to intercept any communication in the course of its transmission by means of a public telecommunication system.3 RIPA 2000 also creates a private right of action for unlawful interception on a private telecommunications system.4

RIPA 2000 was enacted to put the covert work of the intelligence agencies and the police onto the statute books and bring their activities into line with the European Convention on Human Rights (ECHR). As such, RIPA 2000 makes no provision for anyone outside the police and intelligence agencies to obtain authority to phone-tap or hack. Specifically, there is no public interest defence for a person found in breach of RIPA 2000.

In 2006 Goodman, former royal editor of NoW, pleaded guilty to intercepting the voicemail messages of the royal household in breach of s1 of RIPA 2000 and was sentenced to four months’ imprisonment. He had listened in to almost 500 messages over nine months. His co-conspirator, ex-footballer turned private investigator Glenn Mulcaire, received a six-month sentence.

NoW claimed that Goodman was acting on a frolic of his own and no one else at the paper knew about his illegal activities (the ‘lone rotten apple’ defence). The imprisonment of his royal editor for illegal interception toppled the editor of the paper, Coulson, who resigned in the immediate fallout.5 Coulson cried ‘lone rogue reporter,’ the scandal quietened and, four years later, he found himself at the helm of the incumbent Tory party’s PR brig.

However, in January this year, with the emergence of a second rotten apple, assistant editor Ian Edmondson, Coulson resigned for a second time because of allegations of phone-hacking on his watch, and the lone rotten apple defence – which had always strained credulity – fell apart.6

The information obtained from Edmondson’s files and e-mails, which led to his sacking, was then passed to the Met. It opened its case for a third time – there had been no further prosecutions since Goodman’s and Mulcaire’s – claiming that the haul of ‘significant new information’ compelled a reinvestigation. Third time lucky?

The Met, who also had this information, repeatedly failed to notify potential victims, even when approached directly by victims asking if they had been targeted.

The Met’s apparent failures were so alarming that its former deputy assistant commissioner Brian Paddick launched a judicial review of its investigations. He was joined by Lord Prescott, Simon Hughes MP and journalist Brendan Montague, who also appeared to have been targeted but were not so informed by the police at the time.

Data Protection Act (DPA) 1998

The ICO, meanwhile, had powers under DPA 1998 to prosecute those responsible for phone-hacking, but lacked the money and might to take on the national press.

DPA 1998 brought in the new offences of unlawfully obtaining, disclosing or procuring the disclosure of personal data, or information contained in it, without the consent of the organisation holding the information (the data controller).

There is a defence that, in the circumstances, the act of the journalist, private investigator or instructing editor was justified as being in the public interest.8 However, a genuine public interest justification will be rare.

Needless to say, Goodman’s reporting to the nation on the state of Prince William’s knee tendon would be unlikely to cut much ice. Nor, as you may be able to detect from the title, would the Sun’s contemporaneous effort (scooped but not reported by Goodman), ‘Harry Buried Face in Margo’s Mega-Boobs. Stripper Jiggled… Prince Giggled’.

While s55 offences may be prosecuted at the instigation of either the ICO or the Director of Public Prosecutions, those brought have had little force.

Even with boxfuls of condemnatory evidence from the ICO’s Operation Motorman investigation into data protection offences – paperwork naming the reporters who had commissioned the hacking, the editors who had approved it and invoices identifying the confidential information traded – the ICO was forced to back down. It faced Fleet Street hiring expensive QCs to defend itself, which the ICO had no budget to match.9

Press Complaints Commission (PCC)

Clause 10 of the PCC Code of Practice warns that the press must not seek to obtain or publish material acquired by intercepting private or mobile telephone calls, messages or e-mails, or by accessing digitally held private information without consent. Incidentally, that specific ban on digital interception was inserted in the wake of Goodman’s trial to make explicit that phone-hacking by the press was not to be tolerated.

There is a public interest justification, but only when the ‘material cannot be obtained by other means’. As the preamble says:

‘It is the responsibility of editors and publishers to apply the Code to editorial material… They should take care to ensure it is observed rigorously by all editorial staff and external contributors, including non-journalists.’

Therefore, the blinkered or blind-eye turning editor who sits atop a news organisation has no arguable justification for phone-hacking on their watch.

In light of these strictures, a concerned potential victim may be minded to go with their complaint about phone-hacking by the press to the PCC. Regrettably, the body has declined to investigate phone-hacking. It claims that legally it cannot, when neither the existence of civil proceedings, nor the rules of sub judice in criminal cases prevent it from investigating.

Breach of confidence/Article 8:

‘misuse of private information’

ECHR, drafted originally in 1950 as a bulwark against the spread of Stalinism, protects an individual’s (Article 8) right to respect for their private and family life, home and correspondence. The development of a freestanding cause of action in privacy, the ‘tort’ of misuse of private information, emerged only very recently through the shoe-horning or piggy-backing of Article 8 into/onto an action for breach of confidence.10 The patently confidential circumstances in which information is imparted by exchange of voicemail will invariably found a joint cause of action in confidence and privacy.

The court deploys the test from Campbell v MGN Ltd [2004], as applied by the Court of Appeal in McKennitt & ors v Ash & anor [2006], to determine whether an instance of hacking was unlawful:

Does the targeted individual have a reasonable expectation of privacy in the intercepted information?

If so, in the circumstances, should the interest of the owner of the private information yield to the right of freedom of expression conferred on the publisher by Article 10?

The reasonableness of an individual’s expectation of privacy in the information in personal voicemails, provided it is not trivial or available elsewhere, is unassailable.11 Furthermore, the act of hacking itself is arguably offensive to the principle of Article 8 of ECHR, even when the purloined information is not published. Moreover, the Human Rights Act (HRA) 1998 endows the PCC Code provision, banning digital interception with some legal, and not just self-regulatory effects, since s12(4)(b) of HRA 1998 compels the courts to consider any relevant privacy code in an Article 8 ECHR claim for misuse of private information.

Only if the newspaper has a countervailing right in publishing the contents of any private voicemails will the claimant lose their right to privacy in the information. Mosley v News Group Newspapers Ltd [2008] sets a high threshold for the public interest, so that only matters of genuine public import will be protected.12 To repeat the well-rehearsed dictum: there is a wide difference between what is interesting to the public and what it is in the public interest to make known.13

If the anti-Stalinist genesis of ECHR is kept in mind, it will perhaps be unsurprising that the routine and opportunistic surveillance of individuals who happen to be in the news would not overcome that threshold. Nor do ‘fishing expeditions’ by journalists, even when some of the information obtained does turn out to have a public interest element.

CIVIL CLAIMANTS

With the repeated failures of the proper bodies, it is left to civil claimants and specialist privacy lawyers to bring to light the full extent of the ‘dark arts’. People, including Steve Coogan and Sienna Miller, have brought claims against News Group Newspapers (NGN), the division of Rupert Murdoch’s publishing empire that controls NoW (as well as the Sun, the Times and the Sunday Times).

None of the actions brought so far has yet reached trial. Max Clifford and Gordon Taylor, who brought the first phone-hacking claims, reached settlement agreements with NGN, receiving payouts totalling £1.7m. Gradually the drip-feed of evidence in civil disclosure is lifting the lid on Fleet Street, and, at last, achieving redress for victims whose privacy has been invaded by the seamy opportunism of the newspaper-instructed hackers, tappers and blaggers. With phone-hacking victims potentially in the thousands, it is unclear how much longer NGN will be willing, or able, to buy silence, à la Clifford and Taylor, from those it targeted. As the Met is becoming increasingly more obstructive – it recently started hiring QCs to resist applications for disclosure and a page of Mulcaire’s notebooks disclosed by the Met will commonly show the claimant’s name drowning in a sea of black crossings-out – it would certainly be wise to get an enquiry and claim early.

The New York Times provides an audio clip of Glenn Mulcaire instructing a journalist in the ‘dark arts’ of hacking Gordon Taylor’s phone: http://www.nytimes.com/2010/09/05/magazine/05hacking-t.html?_r=3&pagewanted=2&ref=global-home.

It is a fascinating lesson in PR’s equivocations to compare Andy Coulson’s public statements about the phone-hacking to affairs at such key moments.

Davies, Flat Earth News (p265).

Section 55, Data Protection Act 1998.

Davies, Flat Earth News (p272).

Arguably, it is not a tort proper, since it is not clear that a wrong has in fact been committed until the judicial balancing of Article 8 and Article 10 of the European Convention on Human Rights.

As Megarry J once observed, ‘equity ought not to be invoked to protect trivial tittle-tattle, however confidential’ (Coco v AN Clark (Engineers) Ltd (1969) RPC 41); ‘equity will not act in vain’, so the ‘Spycatcher’ principle from A-G v Guardian Newspapers (No 2) [1990] 1 AC 109 prevents information already in the public domain from being protected.

Max Mosley’s case was also against News of the World, which falsely claimed he had been involved in a ‘Nazi’-style orgy. Eady J’s meticulously reasoned judgment puts paid to the suggestion that there was any Nazi element, but, as he recognised, Mosley’s life was already irremediably damaged by the publication of the allegations and videos.